Corporate Cop’s Covert Video at Issue in Xbox Modding Case

A California man facing trial on accusations he made a business of modifying the Xbox to play pirated games is urging a federal judge to exclude covertly videotaped evidence of him allegedly performing the deed.

Defense attorneys contend that a private investigator with the Entertainment Software Association broke the law when he made the secret video recording of 28-year-old defendant Matthew Crippen modifying an Xbox 360 in Crippen’s residence in Southern California. The California Privacy Act, the defense maintains, made the covert video-recording illegal, because the investigator was not a law enforcement official.

“The sanctity of the home (.pdf) is well established,” Callie Glanton Steele, deputy federal public defender, wrote in a recent court filing.

Crippen, of Anaheim, allegedly ran a business modding Xbox 360s for between $60 and $80 a pop. He was charged with violating the anti-circumvention provision of the Digital Millennium Copyright Act, after he performed silicon surgery for an undercover corporate security investigator with the Entertainment Software Association, then again for an undercover federal agent.

His trial is set for Nov. 30, and would be the first console modding case to go to jury trial. The looming courtroom confrontation is drawing interest from freedom-to-tinker advocates, and celebrity hardware-hacker Andrew “Bunnie” Huang has agreed to testify for the defense.

Prosecutors, who did not respond for comment, said the videotaped evidence of the 2008 meeting in question was obtained lawfully. Both sides presented U.S. District Judge Philip Gutierrez with various California precedents and interpretations on whether the taping was lawful in California. The video recording did not include audio, so did not run afoul of other laws prohibiting bugging of conversations.

The Los Angeles investigator, Tony Rosario, did not return messages. Rosario has not been charged with wrongdoing. Steele did not respond for comment.

The government argues that the the tape should be admissible regardless of whether it was made legally, because federal rules of evidence allow it. “[W]hether or not the video recording violates California law is entirely irrelevant to the issues in this case.” (.pdf) The defense conceded that point, but said the tape should be excluded to avoid jury confusion.

“It is essential that the defense test Mr. Rosario’s credibility on cross-examination in the face of his violation of state law,” Steele wrote. “The necessary process of delving into this area of state law risks creating a mini-trial on the question of Mr. Rosario’s violation of state law which will confuse the real issues for the jury’s determination, consume the jury’s time and waste judicial resources a trial.”

The defense is not objecting to a similar video made, in Crippen’s residence, by the federal undercover agent who allegedly paid Crippen about $60 to modify an Xbox. That’s because the California Privacy Act in such circumstances does not prohibit law enforcement officials from making tapes secretly.

Judge Gutierrez of Los Angeles has not yet ruled on the videotape, and is also fielding a government demand that Huang be blocked from testifying for the defense.